Abstract
Global Standard Essential Patent Litigation: Anti-Suit and Anti-Anti-Suit Injunctions
Highlights
International technical standardisation has produced important technologies such as 2G, 3G, 4G, 5G and Wi-Fi, which enable connectivity for our smartphones, tablets, computers and many more devices.[1]
The anti-suit injunction saga benefits no one: the parties in standard essential patents (SEP) licensing disputes are faced with legal uncertainty as to which court will hear their case; it incentivises a race to the court to secure the most favourable jurisdiction instead of focusing on licensing negotiations; it increases litigation costs of having to pursue multiple anti-suit injunctions (ASI) and anti-anti-suit injunctions (AASI); and parties face fines and imprisonment of officials for non-compliance
European courts are reluctant to interfere with foreign proceedings and have not issued ASIs but are ready to protect their jurisdiction against foreign intrusion with the grant of AASIs
Summary
International technical standardisation has produced important technologies such as 2G, 3G, 4G, 5G and Wi-Fi, which enable connectivity for our smartphones, tablets, computers and many more devices.[1]. The argument typically presented in favour of using ASIs is that they enable the consolidation of global litigation before one court, saving litigation costs and preventing conflicting parallel judgments Another argument is that they are a “powerful tool” for prospective licensees against SEP owners that may have failed to comply with their FRAND licensing obligations.[10]. ASIs raise the fundamental question of whether any court has the right to decide that it is better placed than other competent courts to resolve the terms of a FRAND licence Against this background, the aim of the article is to examine first why has there been a rise of ASI and AASI cases around the world in SEP licensing disputes and, second, what can be done to mitigate their use.
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